Friday, July 8, 2011

As Long As They End Up Dead May Not Satisfy the Constitution

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not.

Well, sure. That's the Law of Rule in action.

It's also, and this is the part that makes you sit up and take notice, the first sentence of a 60 page Opinion and Order by U.S. District Court Judge Gregory Frost of the Southern District of Ohio. Here's the second sentence.

This is nonsense.

Frost, a former prosecutor who handled murder trials among other things, was appointed to the federal court by President Shrub in 2003 and shortly afterwards got Ohio's lethal injection law dumped in his lap. He's been dealing with these cases for something approaching 7 years now. He's been affirmed occasionally, overruled sometimes too. He does what he thinks the law requires, which is really about all you can ask.

So here's the present situation.

Kenneth Smith is scheduled to be murdered by the state of Ohio on Tuesday, July 19. Corrections officials plan to pump a bunch of pentobarbital into his veins and then watch while he dies. They will do that in strict adherence to the written protocols that have been repeatedly rewritten over the past few years. Except that maybe they'll ignore those protocols. Evidence (and several dozen of the 60 pages in Frost's opinion are devoted to detailing evidence that's been presented) shows that the state routinely rewrites and routinely ignores the protocols. Smith argued that these variations violate his right to equal protection of the laws and that Frost should grant a stay.

Here's Frost again, laying it out.

The equal protection theory upon which Plaintiff proceeded at the June 29, 2011 hearing is that Defendants’ policy and pattern of deviations from the written execution protocol treat each condemned inmate differently, burdening his fundamental rights and constituting disparate treatment that is not rationally related in any way to a legitimate state interest. The threshold question is therefore whether Plaintiff is correct that Defendants routinely deviate from mandated or core provisions set forth in the written protocol.
The brief answer is yes. Throughout the course of this litigation, Ohio time and again has used its written protocol as both a sword and a shield. Defendants have attacked various inmates’ claims of dangerous state practices by pointing to the written protocol as evidence of official policy and procedure that provide salvaging order and predictability. At the same time, Defendants have cloaked themselves in the various permutations of the written protocol, which they have periodically updated to formalize the customs and practices that propped up an often teetering protocol, all in an effort to shield Ohio’s lethal injection practices from invalidation under the Constitution. But after literally over half a decade of litigating the issues that way, it now appears that the state officials involved have decided either to change their minds or to come clean on what the actual beliefs and practices are and not what they have previously told this Court to be true.
. . .
Previously, Voorhies testified that the written protocol carries the force of administrative law. The SOCF warden is required to follow the protocol, Voorhies testified in 2009, and former DRC Director and former SOCF warden Terry J. Collins, his then-supervisor, agreed. Now Morgan, the latest SOCF warden, tells this Court that the written protocol is merely a set of guidelines, and from the vantage point of his promotion, Voorhies conveniently agrees. The man who once testified that the written protocol carries the force of law now offers that the written protocol does not set out mandated regulations. The controlling set of mandates constituting the written protocol that often shielded Ohio’s practices from constitutional infirmity and provided the state with a sword to puncture inmates’ claims is thus revealed to be an advisory compilation of guidelines subject to being ignored.

Got that? No? Here's the short version then.

Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures. No inference is required to reach this conclusion, much less the stacking of inference upon inference. Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion. These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines. Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy.

Want a shorter version still?

Ohio's current execution protocol is that it can do whatever it wants and kill however it wants and can make it all up on the spot. And that's been the reality for some time.

(That one's my formulation, not Frost's, but it's a fair summary.) Which means that there is no controlling rule. And that means that nobody knows what they're doing or are going to be doing. And that means that the decisions are random and arbitrary and inconsistent. And they're all of that for no good reason.

The guys who oversee the actual killings and claimed in the past to be strictly bound by the written protocols, now say that they were never bound by them and can change things right and left and have done so to ensure that executions will always be carried out humanely and efficiently.

This Court has no reason to believe that these men do not in fact wish to achieve that goal. But wishes are poor substitutes for subversive action that undercuts the stated goal. Neither man could explain how the core deviations they have permitted and even at times encouraged serve a more humane execution.
There is a disconnect between the written protocol source from which Morgan and Voorhies attempt to draw the unbridled deviation authority and the deviations in which both men engaged. Section VI.B.4.o permits a warden to make alterations and adjustments to policies only “as necessary to ensure that the completion of the execution is carried out in a humane, dignified, and professional manner.” Logic and certainly experience teach that fewer protections do not encourage, much less are necessary for, a more humane execution, and in fact fewer protections risk subverting that goal. Broom would no doubt agree with that proposition, and Clark would likely as well if he were alive. This Court does, and any intellectually honest and dispassionate observer must as well.

Put slightly differently, as Frost does to end that paragraph:

Periodically dispensing with safeguards is not a policy aiming for consistent and promising results.

No shit.

But, and here of course is the rub, so what?

And here's what Frost says, and this time I'm not going to quote him because it needs some simplification. They ignore the protocols, when they do, ostensibly to make the executions more humane, but in fact just to make sure they get done, regardless of whether the result is humane. And if there's no way to predict how any particular execution (say Smith's) will be performed, then there's no way to say he's being treated like anyone else. And there's no rational basis for the variation.

Put as succinctly as possible, and this time by Frost,

A death warrant cannot trump the Constitution.

Want to know why? He explains.

That latter document is not an inconvenience to be worked around or ignored. It is the most fundamental expression of the principles, rights, and obligations that define this country, and no governmental actor should ever disregard its dictates and prescriptions in this or any other context to fulfill any sense of perceived duty. It is wholly lawful to execute capital inmates. It is wholly unlawful to even attempt to do so in a manner that violates the Constitution.

Want more?

Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions. Neither term is sufficient to capture the importance of what is involved here. “Messy” is child’s terminology that undermines the gravitas of state-sanctioned killing. “Botched” sounds perhaps comical and falls far short of what is necessary to describe the risky scenario Ohio’s execution process presents. “Failure” and “constitutionally impermissible” are more fitting.

And so, it comes to this.

The perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.